Xiong v. United States of America

Filing 28

ORDER DENYING Certificate of Appealability; signed by Judge William C Griesbach on 07/11/2012. (cc: all counsel, via US mail to Pao Xiong)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PAO XIONG,
Petitioner,
v.

Case No. 11-C-474

UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING CERTIFICATE OF APPEALABILITY

On May 3, 2012, I denied Petitioner Pao (aka “Danny”) Xiong’s motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his conviction based on his allegations that his trial counsel’s
representation was ineffective. (Order, ECF No. 20.) I also denied his request for an evidentiary
hearing, concluding that the record conclusively demonstrated Petitioner was not entitled to relief
on his § 2255 motion. (Id. at 8.) The case is before me now on Petitioner’s motion to grant him
a certificate of appealability.
Petitioner must have a certificate of appealability if he is to appeal this denial of his petition
for post conviction relief brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(A);
Fed. R. App. P. 22; Rule 11 Governing § 2255 Proceedings. Such a certificate shall issue “only
if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
Before issuing a certificate of appealability, a district court must find that the issues the applicant
wishes to raise are ones that “are debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to deserve encouragement to

proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983).
Here I conclude Petitioner has not made a substantial showing of a denial of a constitutional
right. His petition demonstrated neither the cause nor prejudice prongs of the Strickland test for
ineffective assistance of counsel. Because his petition therefore failed on multiple bases, the issues
Petitioner presents do not deserve encourage to proceed further. Therefore, IT IS ORDERED that
the certificate of appealability is DENIED.
Dated this

11th

day of July, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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